James Anaya, United Nations Special Rapporteur on the Rights of Indigenous Peoples, says seeking the consent of First Nations on major resource projects does not equate to a veto.Photo by
Sean Kilpatrick

OTTAWA — The Harper government should “probably” consider blocking the controversial Northern Gateway oilsands pipeline to the B.C. coast, the United Nations’ top advocate for the rights of indigenous people said Monday.

Ottawa is expected to give the controversial $7.9-billion pipeline project the green light next month.

In a new report assessing Canada’s treatment of Aboriginal Peoples, James Anaya urged the government to obtain “free, prior and informed consent” before allowing major projects like Enbridge’s pipeline proceed.

He said he wouldn’t provide a specific recommendation on any single project, but did say the government needs to ensure First Nations rights — in areas such as salmon harvesting — aren’t negatively affected by projects.

Anaya was then asked in an interview about Enbridge’s Northern Gateway project, which isn’t supported by a majority of the First Nations along the route in B.C. due to environmental concerns.

“In that particular case the government probably shouldn’t go forward,” he said.

But Anaya said his report’s call for the government to obtain “free, prior and informed consent” on all major projects shouldn’t be treated as a general call for a blanket First Nations veto on all projects.

He said advocacy groups and non-governmental organizations in Canada and around the world have misinterpreted the UN’s 2007 International Declaration on the Rights of Indigenous Peoples.

That declaration, which Anaya helped draft and which Canada conditionally adopted in 2010, says governments should seek to obtain the “free, prior and informed consent” of aboriginal people before proceeding with major resource projects.

While Anaya’s report urged the Harper government to meet that standard before projects are approved, he said the terminology shouldn’t be misread.

“There’s a lot of misunderstanding on that,” he told The Vancouver Sun. “Everybody has a right to consent, but there’s no instrument that says you have a right to block something unilaterally.”

Anaya’s 2013 report stated: “In all instances of proposed extractive projects that might affect indigenous peoples, consultations with them should take place and consent should at least be sought, even if consent is not strictly required.”

Anaya, an American legal scholar and the UN’s outgoing Special Rapporteur on the Rights of Indigenous Peoples, made the comments after the UN made public his final report Monday.

Anaya, who visited Canada last year, said in the report Canada has a strong legal foundation dating back centuries that respects the rights of Aboriginal Peoples. That foundation includes the Supreme Court of Canada’s requirement that governments both consult and accommodate First Nations interests.

But he pointed to the federal government’s limited success in resolving land claims, reducing poverty, improving education outcomes, and dealing fully with the disappearance and murder of more than 1,000 First Nations women and girls over the past three decades.

“It is difficult to reconcile Canada’s well-developed legal framework and general prosperity with the human rights problems faced by indigenous peoples in Canada that have reached crisis proportions in many respects,” he wrote.

“Moreover, the relationship between the federal government and indigenous peoples is strained, perhaps even more so than when the previous Special Rapporteur visited Canada in 2003, despite certain positive developments that have occurred since then and the shared goal of improving conditions for indigenous peoples.”

First Nations leaders seized on Anaya’s remarks about the “strained” relationship with Ottawa.

“The Harper government continues to aggressively pursue a unilateralism legislative agenda that allows unsustainable resource development without meeting the government’s legal and constitutional duty of consultation and accommodation on projects that impact our inherent title, rights and treaty rights,” stated Grand Chief Stewart Phillip, President of the Union of B.C. Indian Chiefs. “The Harper government still relies upon ineffective, legally outdated, emaciated, prejudicial and dishonourable policies of engagement with indigenous peoples in Canada.”

One of Anaya’s recommendations calls on the federal government to adopt a clear policy on consultation and accommodation before allowing major resource projects to proceed.

“In accordance with the Canadian constitution and relevant international human rights standards, as a general rule resource extraction should not occur on lands subject to aboriginal claims without adequate consultations with, and the free, prior and informed consent of, the indigenous peoples concerned.”

Anaya’s report listed numerous major Canadian natural resource initiatives that, according to First Nations leaders he met, pose “great risks” to their communities.

In B.C. they included the proposed Kinder Morgan and Enbridge oilsands pipelines to the B.C. coast, the Site C hydroelectric dam project on the Peace River, gas drilling and pipeline construction in northeastern B.C. on traditional First Nations territory, and the attempts by Taseko Mines and Fortune Minerals to build mines on unceded traditional First Nations territory in northwestern B.C.

Aboriginal Affairs Minister Bernard Valcourt cited in a statement Monday the report’s complimentary references to Canada’s track record in protecting the rights of First Nations.

“The report published by the Special Rapporteur today acknowledges that, while many challenges remain, many positive steps have been taken by the Government of Canada to improve the overall well-being and prosperity of aboriginal people in Canada.”

The statement also said an expanding natural resources sector — the largest private employer of First Nations people in Canada — would help improve the economic plight of First Nations.

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